SUSANA v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 2640/2018

[2020] HKCFI 117

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2640 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.  The applicant is a national of Indonesia. She arrived in Hong Kong on 17 October 2008 as a domestic helper and was permitted to stay until 5 September 2010. Her employment terminated prematurely. But she overstayed and was arrested by police on 16 July 2009. On 21 July 2009, she was convicted of the offence of breach of condition of stay and was sentenced to 7 days’ imprisonment suspended for 12 months. She lodged a non-refoulement claim on 22 January 2014.

3.  She claimed that if refouled, she would be killed by her ex-husband, Mr. Mohammad Azis, the debt collectors of her ex-husband and her mother.

4.  She married to her husband in 1999 and they had a daughter. Since 2001, she had problem with her husband as he always womanized and slapped her, especially after drinking. He beat her with bare hands about four times a week. She did not sustain injury. Once he kicked her and she was unconscious. She had to have check-ups in hospital. She asked for a divorce. He refused. Her husband’s younger brother acted as mediator sometimes. She worked as an assistant in a hair salon far away from home. She worked there for six months without incident. Her husband then came to ask her to go home with him, saying that he would change. She did so. However, he continued to abuse her shortly afterwards. In 2005, she contracted an agent for domestic helper service in Hong Kong. She received training for 7 months. With her husband’s consent, she came to Hong Kong as a domestic helper. She remitted money to him every month. Later, she learned from her daughter that he had married another woman and sold her house in Indonesia. She raised divorce with him. He was angry and threatened that he would kill her. However, she managed to divorce him in 2008. She had also said that her ex-husband and her mother had borrowed money from the money-lender in Indonesia. She had no idea how much. The money-lender had been chasing her mother for payment of the debts.

The Director’s Decision

5.  She had made a torture claim and failed. The Director considered her application in relation to the following risks:

a. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

b. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

c. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk under RC”).

6.  By Notice of Decision dated 19 March 2018 (“the Director’s Decision”), the Director rejected her claim for the reason that her claim was not substantiated.

The Board

7.  The applicant appealed to the Board and she attended a hearing before the Adjudicator on 13 September 2018.

8.  By Decision dated 29 October 2018 (“the Board’s Decision”), the Board refused her appeal and confirmed the Director’s Decision.

9.  The Board considered the applicant’s case and found that the Board did not accept:

1. the applicant’s claim that she would be harmed by her ex-husband or the loan sharks if she returned to Indonesia;

2. that she was afraid of going back to Indonesia for the above reasons;

3. that she was mistreated by her ex-husband and suffered injuries when she was in Indonesia and that she would be harmed by the loan sharks because of her husband’s debt; and

4. State protection would be available and relocation is a possible option according to the COI.

10.  In her Form 86 under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Director’s Decision and the Board’s Decision respectively.

11.  The applicant relies upon the following grounds:

1. there was no legal representation or assistance for her appeal and for this application;

2. there was no translation for the Board’s Decision; and

3. she belonged to a particular social group of women from an abusive marriage.

DISCUSSION

The Director’s Decision

12.  In the decision in Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision.

13.  The applicant has not set out any exceptional circumstances.

14.  Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

15.  The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss her application.

The Board’s Decision

16.  The applicant appeared before me. She confirmed that she had no complaint against either the Immigration officer or the Adjudicator. She considered that she had had a fair hearing before the Board. Her lawyer had explained the Director’s Decision to her. She could read English herself.

17.  I put the Board’s findings to her for her comments. She said that she had no comments.

18.  It is obvious that as the Board rejected her evidence in support of her claim. The Director and the Adjudicator are to assess the merits of the case. Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14

19.  The applicant does not have the absolute right of free legal representation at every stage of the proceedings. It would be sufficient if she had legal representation at the screening stage. Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22.

20.  All the grounds above are irrelevant to the finding of the facts by the Board. They are also inconsistent with what she said in court.

21.  The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.

CONCLUSION

22.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for the intended judicial review. Accordingly, I dismiss her application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1